The legal system of the United States is a "dual track system", that is, federal law and state law coexist, and the United States is a case law country, so there is no unified lawyer law in the United States. Laws and regulations concerning the lawyer system are scattered in the Constitution, case law and the Lawyers Law formulated by the Lawyers Association.
Some people divide American lawyers into three types according to their positions: lawyers employed by government agencies, lawyers employed by enterprises and companies, and lawyers who run law firms ("listed lawyers"). The first two kinds of lawyers are employees of the government or enterprises. They only handle the legal affairs of their own government agencies and companies, and do not accept the entrustment of the parties in society. The latter is a lawyer who performs his duties in society, serves the unspecified majority in society and obtains a business license, so he is also called a "listed lawyer".
In recent decades, there have been some lawyers specializing in a certain law and handling certain cases in the United States, and the tendency of division of labor among lawyers has become more and more obvious. At present, a number of professional lawyers such as patent lawyers, contract lawyers and tax lawyers have appeared in the United States.
American lawyers have a wide range of activities and businesses. Lawyers are active in all fields of society. Lawyer's business has developed from early criminal defense to concurrently serving as legal adviser, providing consultation, representing litigation and handling non-litigation legal affairs.
In the United States, lawyers have a high social status and are a profession that people yearn for and respect. This lofty social status depends on the following reasons: First, the United States is a country that abides by case law and its laws are very complicated. If people want to deal with various problems in political life, economic life and social life, they need the help of lawyers, otherwise they will be unable to move. In addition to individuals, some important decisions made by government agencies, enterprises and social organizations, even if they are not made by lawyers themselves, often have to carefully consider their opinions before making decisions. Second, lawyers have higher economic income. Third, lawyer qualification is a ladder for upward promotion. So far, 23 presidents in the United States are lawyers, and more than 60% members of Congress have performed the duties of lawyers. Judges and prosecutors are generally held by people with lawyer qualifications.
Due to the high social status of lawyers, the conditions for obtaining lawyer qualification are very strict. Although the specific provisions of each state are different, they should generally meet the following conditions: First, they must be adults; Second, those who have been proved to have no misdeeds by conduct investigation; Third, you must pass the state bar exam. In the United States, the bar qualification examination is presided over by an examination committee composed of examiners appointed by the supreme courts of each state. Examiners are generally authoritative judges or lawyers in the state, and candidates must be American law school graduates with a bachelor's degree in law. Filial piety tests include federal and state laws. After passing the examination, the examination committee will issue a lawyer qualification certificate. Just because you are qualified as a lawyer in one state does not mean that you can practice in other States. If you want to be a lawyer in another state, you need to pass the bar exam in another state.
There are three forms of American lawyer practice. One is personal practice. The second is the joint operation of the firm. Third, the partnership law firm.
The organization of lawyers in the United States is the Bar Association. There are federal bar associations, state bar associations and county bar associations. The federal and state bar associations are not affiliated. The primary task of the bar association is to formulate a lawyer's code and educate lawyers on morality and discipline. (2) Organizing lawyers to further study law; The third is to educate lawyers in society. It also supervises lawyers' implementation of the Lawyers Law and receives complaints from citizens against lawyers. The Bar Association has no right to directly punish lawyers, stop practicing or expel lawyers. These powers are exercised by state courts.
Lawyer system in Japan
Before Meiji Restoration, there was no lawyer system in Japan. In the fifth year of Meiji, Japan formulated a judicial post system based on France. According to this system, there are "book representatives" and "spokespersons" in Japan, which opens the way for agents to participate in civil litigation. 1876 In February, Japan promulgated the Spokesman's Rules (A 1). 1880 in May, the rule was modified. 1882 criminal law established the administrative defense system for the first time. 1903 In February, Japan promulgated the Lawyers Law, which replaced the spokesperson rule, but inherited the basic spirit of the rule. After World War II, Japan absorbed the legislative experience of Britain and the United States, reformed the judicial system, and promulgated a new lawyer law on 1949. This law has been revised several times, which is the legal basis of the current lawyer system in Japan.
Japan 1949 promulgated the Lawyers Law, which has been revised several times before and after, and now there are 92 articles in 1 1 chapter. The mission, qualifications, rights and obligations, organization and punishment of lawyers are comprehensively and systematically stipulated. This paper briefly introduces its main contents.
The mission and duty of a lawyer. Article 1 of Japan's Lawyers Law stipulates that lawyers have two major missions: one is to support basic human rights and realize social justice; The second is to maintain social order and improve the legal system on the basis of performing duties honestly. Since World War II, Japanese lawyers have done a lot of work to accomplish the above mission. First, they initiated and organized the "Human Rights Publicity Conference". So far, the association has held more than 20 congresses. Secondly, Japanese lawyers are also extremely sensitive to public hazards and drug harm, and they have waged an indomitable struggle against these public hazards and won some victories. Third, Japanese lawyers have done a lot of work in improving the legal system, such as legislation on minors. Because of the lawyer's opposition, the legislative intention of dealing with juvenile criminal cases severely has not been realized. These actions by lawyers have won considerable support from Japanese nationals.
The responsibilities of lawyers stipulated in the Lawyers Law mainly include: participating in litigation cases, representing citizens, institutions and groups, and defending criminal defendants; Providing legal aid for non-litigation cases to the society; Acting for tax, etc.
Lawyer qualification. There are three provisions on lawyer qualification in Japanese lawyer law:
(1) stipulates the qualification of lawyer in general, that is, the qualification of ordinary lawyer, which is the end of the study of judicial advanced students;
(2) The exception of general lawyer qualification is stipulated: serving judge of the Supreme Court; In-service law professors and associate professors in universities, specialized courses and colleges; After obtaining the qualification of judicial advanced students, those who have served as serving judges, prosecutors, judges, magistrates, legal officers, clerks of judicial research institutes and magistrates, teachers of research institutes or legal research institutes, counselors of the Legislative Affairs Bureau of the House of Representatives or Senate, and counselors of the Legislative Affairs Bureau of the Cabinet for more than five years in summary courts can obtain the qualification of lawyers without completing the study of judicial advanced students. Because Japanese "judicial advanced students" refer to the qualifications obtained through the national examination after graduating from the law department of ordinary universities, and most of them study business practice. Therefore, although the above-mentioned personnel have not completed the study practice of "judicial advanced students", they have worked in the actual department for five years, which is equivalent to the end of the study of judicial advanced students.
(3) The exclusion conditions of lawyer qualification are stipulated. According to the provisions of the Japanese Lawyers Law, a lawyer cannot be qualified under any of the following circumstances; Sentenced to fixed-term imprisonment or above; Judges dismissed by impeachment courts, dismissed lawyers, debaters and tax collectors whose business has been suspended; The accountant who has been dismissed from his post or the civil servant who has been removed from his post has been less than 3 years since the date of punishment; People who have been declared incapable of property management; Bankrupt whose rights have not been restored.
Japanese lawyer organizations and lawyers' work organizations. Japanese lawyers are autonomous, and their lawyer organizations play an important role in the lawyer system. There are two kinds of lawyers' organizations in Japan: Japan Lawyers' Association (JFBA) and Law Society. Japan Lawyers' Federation (also known as Japan Defenders' Federation) is a national lawyer organization. Its task is to protect the character of lawyers, seek improvement and progress of lawyers, and supervise, guide and contact lawyers and lawyers' associations. The Japan Bar Association has 1 president, 165438 vice president, 7 1 director and 5 supervisors. These people are elected. The term of office of the President is 2 years, and the rest are voluntary, with a term of 1 year. In addition, the Japan Law Association has eight committees: the Qualification Committee; Disciplinary Committee; Disciplinary Committee; Advocacy Committee for Human Rights; Judicial Continuing Education Committee; Commission of Inquiry into the Judicial System; Lawyer recommendation Committee; Electoral affairs commission. The work of "Japan-France Alliance" mainly includes three aspects: First, examining lawyers' qualifications, supervising lawyers' behavior, punishing illegal lawyers, and supervising the work of lawyers' associations. This work is primary and routine; Second, investigate and study the perfection of legislation and justice. 1972, there was a resolution in Japan, which stipulated that in the future, the revision and revision of laws and regulations related to the judicial system should be studied by the Japanese Legal Union and the Supreme Court before being submitted to the National Assembly. Third, engage in activities to safeguard human rights.
The Law Society is a local organization in Japan, and its mission is the same as that of the Japanese Law Society. The Bar Association is a legal person organization. According to the provisions of the Lawyers Law, it is established within the jurisdiction of the regional courts. At present, except for the three law societies in Tokyo, the members of the law societies are all lawyers in their respective jurisdictions. Only a dozen small lawyers. Law associations must formulate their own rules, register with the Japanese Law Association, and accept the guidance and supervision of the Japanese Law Association. The Law Society has 1 president and several vice presidents. In addition, there are specialized agencies such as the Qualification Examination Committee, the Disciplinary Committee and the Disciplinary Committee. The Bar Association plays a connecting role in the Japanese lawyer system. It examines the qualifications of lawyers, guides lawyers to carry out their business and directly supervises their activities.
The working organization of Japanese lawyers is a "law firm". Japanese lawyers are all freelancers, so many law firms are individuals. The names of individual law firms are preceded by the names of lawyers, such as Yamada Law Firm and Hatoyama Law Firm. Some of these firms have special offices, and some are located in lawyers' homes. In addition to the single-person law firm, there are several partnership law firms. The partnership law firm is strong and competitive, which is conducive to the improvement of lawyers' professional level and is trusted by citizens. Therefore, in recent years, such law firms have developed rapidly. In addition to individual or partnership law firms, lawyers are also hired to work in law firms. Most of these lawyers are novices and have matured during their practice, laying the foundation for the independent establishment of law firms in the future.
The emergence and development of lawyer system in China.
In the long feudal society of more than 2,000 years, China had no lawyer system and always practiced feudal autocracy. In the judicial system, there is no distinction between administrative power and judicial power, criminal power and civil power, and there is judicial power from the king to the county magistrate; They are not only the central or local chief executives, but also the central or local public security chiefs, procurators and court presidents. The parties to any case, whether the plaintiff or the defendant, will be tried and tortured to extract confessions. The judge will make arbitrary judgments, and neither the defendant nor the plaintiff will be allowed to defend, nor will anyone else be allowed to represent him.
/kloc-In the middle of the 9th century, with the defeat of the Opium War and the invasion of imperialist powers, China society became semi-feudal and semi-colonial, and foreign lawyers began to appear in China. They first performed their duties in the courts of the "Concession" and then served as defenders or agents in the courts of China. Under the strong impact of foreign legal culture, the voice of reform is growing. In order to protect itself, the decadent and closed Qing government began to reform and amend the law. China, with a history of thousands of years of civilization, finally introduced the bourgeois judicial system from abroad, including lawyers and lawyer system.
19 10 The Criminal and Civil Procedure Law of the Qing Dynasty drafted by the Qing government imitates similar Japanese codes and stipulates that lawyers are allowed to participate in defense and agency. This is the first code in China's legal history that stipulates lawyers' participation in litigation. But before this law was published, the Qing Dynasty collapsed.
After the Revolution of 1911 (19 1 1), the interim government with Sun Yat-sen as the interim president borrowed from the lawyer system of capitalist countries and prepared to follow the example of Britain, the United States, Germany and Japan in selecting lawyers through examinations. However, the interim government was quickly forced to dissolve and was not promulgated and implemented.
After Yuan Shikai stole the country, 19 12 September, Beiyang warlords formulated the Provisional Regulations on Lawyers and the Provisional Regulations on Lawyers Registration. Although there are not many articles in these two regulations (38 in the former and only 7 in the latter), they stipulate the main problems of the lawyer system. This is the first written legislation on the lawyer system in China and the beginning of the lawyer system in old China. After the promulgation of the articles of association, the lawyer industry in China has gradually emerged. 1922, the Shanghai Lawyers Association was established as an early lawyer organization in old China. By the time the Beiyang warlord government collapsed, there were about 3,000 lawyers in China, but most of them were concentrated in big cities such as Shanghai, Nanjing, Wuhan and Tianjin.
During the period of Kuomintang rule, lawyers' activities were greatly restricted because of political darkness and criminal and civil lawsuits that ignored human life. Lawyers are mostly concentrated in big cities, such as Nanjing and Shanghai. It is difficult to find lawyers in remote counties, and there are almost no lawyer activities in the vast rural areas. At that time, lawyers were all freelancers, most of them were individuals, and several people jointly formed a law firm, and the scale was very small. Lawyers' main business is dealing with criminal and civil cases, and they can also be hired as legal advisers. The lawyer accepts the entrustment personally, and the expenses are owned by the individual. Most lawyers aim to make money. Whoever gives money will do things for him, and whoever gives more money will work hard for him. In order to seek personal gain, lawyers choose words to go to court, create disputes and blackmail clients. In old China, the judicial system (including the lawyer system) was semi-feudal and semi-colonial, and it was underdeveloped, so lawyers could play little role. Because most of them came from feudal bureaucratic landlord families and received feudal education, they often served them from the standpoint of landlords, bureaucrats and bourgeoisie in order to safeguard the enforcement of laws at that time and serve the feudal comprador. At that time, there were a few lawyers with a sense of justice who sympathized with the working people, supported the cause of progress and opposed the tyrannical rule of the authorities. However, Shen Junru, Shi Liang and other famous progressive lawyers were often persecuted.
Before the founding of New China, in the judicial system of the revolutionary base areas led by the Communist Party of China, it was stipulated that "the defendant has the right to defense". Judicial organs of democratic political power in revolutionary base areas try criminal cases and allow defendants to entrust defenders to defend them.
During the War of Resistance against Japanese Aggression period, the judicial organs in the anti-Japanese base areas attached great importance to protecting the litigant's litigation rights. Although there is no full-time lawyer due to the limitation of the war environment, the defendant is allowed to entrust his relatives or people with legal knowledge to appear in court to defend him. People's organizations and other units can also send personnel to appear in court to help members defend their lawsuits.
During the war of liberation, some judicial organs allowed the defendant himself or his agent to defend or refute.
China * * * production party has always attached great importance to the national defense system and paid attention to respecting and safeguarding people's rights. The defense system in the revolutionary base areas provided some experience and made good preparations for the establishment of the lawyer system after the founding of the People's Republic of China.
On the basis of criticizing and abandoning the old lawyer system, People's Republic of China (PRC)'s lawyer system has experienced several periods of creation, cancellation, recovery and development, and gradually developed to meet the needs of the national legal system.
In view of the fact that the old lawyers are full of the legal concepts of the exploiting classes and Kuomintang reactionaries, and illegal activities are rampant, litigation lawyers take all the lawsuits and defraud key funds, which disrupts the normal activities of court trials. 1950, 1950 In February, the Ministry of Justice of the Central People's Government issued the Notice on Banning Na Hei Zihe Litigant, which pointed out that: As a part of the old judicial system, the old lawyer system has been abolished. "If the old lawyer still violates the law, it will damage the prestige of the court and the interests of the people and should be banned." Then in 1952, the judicial reform movement was launched nationwide. In this way, the old lawyer system was not only denied in law, but also completely eliminated from society. Our country began to build a new team.
Since 1953, China has entered the new period of the first five-year plan for the development of the national economy, and accordingly it is required to further develop socialist democracy, strengthen the socialist legal system, and establish and improve the people's lawyer system.
From 1954 to 1957, the lawyer system in China has developed greatly. By the end of 1957, lawyers' associations or preparatory committees had been established in 19 provinces, municipalities and autonomous regions, with 820 legal advisory offices, 572 full-time lawyers and 350 part-time lawyers. After the establishment of the law firm, it received a large number of visitors and undertook a large number of criminal defense and civil agency cases. According to the investigation and analysis of 1204 criminal cases handled by 59 legal advisory offices in Shanghai and Beijing 10 provinces, municipalities and autonomous regions, 500 cases were changed in nature through lawyers' defense, and some criminal facts were denied, of which 63 cases were acquitted by the court and 49 cases were exempted from criminal punishment. According to a survey in Shanghai, in the cases defended by lawyers, the vast majority of defendants accepted the verdict, and few people appealed or appealed. It can be seen that the lawyer system has played a great role in safeguarding the legitimate rights and interests of citizens and ensuring the correct implementation of the law.
The anti-rightist rectification movement started from 1957. Due to the influence of leftism, the expanded anti-rightist struggle strangled the lawyer system in new China in the cradle. The "Provisional Regulations on Lawyers" (draft) was put in the cold, and a group of lawyers were accused of "losing their position", "not distinguishing between the enemy and the enemy" and "expressing grievances for criminals and exonerating them". A large number of lawyers loyal to the party and the people and just familiar with socialist laws were labeled as "Rightists", and other surviving lawyers were unable to engage in lawyer work. From 65438 to 0959, all the lawyer institutions were abolished and the lawyer system was completely destroyed. Since then, there has been a blank period of no lawyers in China for more than 20 years, which is a big mistake in the construction of socialist legal system in China.
1On March 5th, 978, the Constitution of People's Republic of China (PRC) adopted by the Fifth National People's Congress restored criminal defense system. Since then, the lawyer system in China has developed rapidly. 1979, Hulan county, Heilongjiang province and other places began to try out the topic defense. Guangzhou has set up a legal institution to handle overseas foreign-related cases. In April, the Shanghai Reconstruction Lawyers Organization and the NPC Law Committee set up a special group to revise the "Provisional Regulations on Lawyers" (draft) drafted in the 1950s.
1979 65438+On February 9, the Ministry of Justice issued the Notice on Lawyers' Work, clearly announcing the restoration of the lawyer system. 1980 On August 26th, the Standing Committee of the Fifth NPC discussed and passed the Provisional Regulations on Lawyers in People's Republic of China (PRC), which was the first legislation on the lawyer system in New China.
After the promulgation of the "Regulations", the ranks of lawyers in China have developed rapidly and their business has been continuously expanded. Lawyers not only defend criminal defendants, but also accept the entrustment of state organs, enterprises and institutions, social organizations and citizens to act as legal advisers and agents of the parties in various litigation cases and non-litigation events.
1996 People's Republic of China (PRC) * * and the 19th meeting of the 8th the NPC Standing Committee unanimously passed the People's Republic of China (PRC) Lawyers Law. This is the first lawyer's law in new China. The Lawyers Law is a milestone in the development of lawyers in China. The promulgation of "Lawyers Law" is of great significance for perfecting China's lawyer system, ensuring lawyers to practice according to law, standardizing lawyers' behavior, further exerting lawyers' role in socialist construction, strengthening socialist democracy and legal system construction, maintaining social stability, and promoting the development of reform, opening up and economic construction.
With the increasing function of lawyers, lawyers not only play an important role in maintaining the correct implementation of national laws and social stability, but also play an important role in promoting the construction of democracy and legal system. Through the work of legal advisers, it has effectively promoted the decision-making and administration of governments at all levels according to law and promoted the in-depth development of ruling according to law. At the same time, in order to meet the needs of the development of socialist market economy, the majority of lawyers vigorously explore business areas related to the development of market economy and actively undertake legal affairs in all aspects of production, distribution, exchange and consumption, which has become an important force in the legal construction of socialist market economy. In addition, the majority of lawyers have played an irreplaceable role in promoting the implementation of China's opening-up policy and the development of economy and trade, and safeguarding the interests of the state and the collective and the legitimate rights and interests of citizens according to law.
However, due to historical reasons and law enforcement inertia, coupled with the young lawyers in our country, lack of professional experience, unsuitable law enforcement concepts, and poor resistance to the adverse effects of money worship, hedonism and extreme individualism in society, some phenomena of moral anomie and non-compliance with professional ethics and practice discipline have emerged. Some lawyers lack their due sense of responsibility, do not perform their duties seriously, and are perfunctory in handling legal affairs and client affairs, even collecting money without service, or charging at will, charging privately, and not keeping accounts; Some lawyers are concerned about handling criminal cases; Some failed to consciously resist the temptation and corrosion of defendants, criminal suspects and their relatives. At the same time, a few lawyers wooed the case handlers to do "relationship cases", and some lawyers even embarked on the road of illegal crimes. Although these problems only happen to a few lawyers, they have a bad influence and great harm. It has seriously damaged the reputation of law firms, damaged the overall image of lawyers, and interfered with the smooth progress of the reform of lawyers' work. In order to build a high-quality lawyer team, correct the problems of a few lawyers and improve the overall quality of the lawyer team according to the requirements of the central authorities and the provisions of the lawyer law, the Ministry of Justice formulated and issued the "Decision on Strictly Implementing the Lawyer Law to Further Strengthen the Construction of the Lawyer Team" 1996 on September 26, putting forward the overall guiding ideology, basic tasks, work priorities, basic requirements and specific measures for the construction of the lawyer team in China. The "Decision" puts forward the basic ideas and general requirements for strengthening the construction of lawyers; In accordance with the requirements of the Central Committee on strengthening the construction of socialist spiritual civilization and the provisions of the Lawyers Law, we should further strengthen management, improve lawyers' political quality, professional ethics and professional quality, and strive to establish a team with reliable politics, exquisite professionalism, noble morality, strict discipline, excellent work style and good social image.
We believe that with the implementation of the Lawyers Law and the progress of democracy and legal system in China, the construction of lawyers in China will be further strengthened, a high-quality lawyer team that can reassure the party and the people will be established, and the lawyer system with China characteristics will be further improved.